The Plaintiff can request that a Defendant be noted in default if the Defendant has failed to serve the Defence within the time period allowed by the Rules. Once noted in default, the Defendant cannot file their Defence with the Court and cannot participate in further Court proceedings on this matter. A Defendant can however bring a Motion to set aside the default to ask the Court to grant them “their day in Court”. The Court will decide whether or not to grant that Motion.
If the Claim is for damages that all parties have not previously agreed to liability and an amount, the Plaintiff must request an Assessment Hearing and go before a Deputy Judge. Examples of these cases are: defamation; non-disclosed property damage found after purchase of a property; personal injury; etc. If this is your type of case, click here to review that process.
If the Claim is for damages that all parties have previously agreed in writing to liability and an amount, the Plaintiff can obtain Default Judgment signed by a Court Clerk. Examples of these cases are:
- loans, promissory notes, IOUs;
- unpaid invoice for services rendered under a contract;
- bounced cheque.
Default Judgment is obtained by filing the required forms with the Court along with the payment of the $89 filing fee (as of April 1, 2019).
Because the Defendant did not serve and file a Defence, the Defendant is deemed to have admitted the allegations made in the Plaintiff’s Claim. This is an admission to being liable and to the amount as detailed in the document(s) between the parties. Because the parties have agreed in writing on what the amount of damages would be, the Court Clerk can issue Default Judgment. The Plaintiff does not need to appear before a Deputy Judge to prove the loss and damage.
Once signed by the Clerk, the Default Judgment is immediately enforceable.
Please note that a Defendant may later file a Motion to set aside a Default Judgment or Judgment obtained by way of Assessment Hearing. The Defendant would seek permission of the Court to file their Defence in order to dispute the Claim. There could be additional costs to the Plaintiff if they wish to fight that Motion. The issuance of Default Judgment, or Judgment by way of Assessment Hearing, may not necessarily be the end of a proceeding.